Shrestha (Migration)

[2020] AATA 184

Shrestha (Migration) [2020] AATA 184 (30 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunil Shrestha

CASE NUMBER:  1712301

DIBP REFERENCE(S):  BCC2016/1850960

MEMBER:R. Skaros

DATE:30 January 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 30 January 2020 at 5:47pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – false or misleading evidence – bogus document – employment experience in home country – reference from employer – verification check revealed applicant not employed at business – applicant known by nickname during time of employment – reference prepared by manager, not owner – employment not declared in spouse’s student visa application – waiver of criterion – compassionate or compelling reasons affecting Australian citizen – value of applicant’s work to current employer – approved nomination of occupation ceased – legislative amendments to visa class – savings provisions do not revive a nomination that has ceased – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(b), 65, 359A, 140GB

Migration Regulations 1994 (Cth), r 2.75(b), Schedule 2, cll 457.223(4)(a), (da), (e), 457.224, Schedule 4, criterion 4020(1)

Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Kaur v MIBP [2017] FCAFC 184

Plaintiff M64/2015 v MIBP [2015] HCA 50

Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 May 2017 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 May 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet public interest criterion 4020 (PIC 4020).

3. The applicant applied for review of that decision and provided a copy of the delegate’s decision record to the Tribunal.

4. During the processing of the review, the Tribunal observed that the 457 nomination in respect of the applicant ceased to be in effect on 20 September 2017.

5. On 25 July 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act and invited the applicant to comment on information which it considered would, subject to the applicant’s response, be the reason or part of the reason for affirming the decision under review. The information related to departmental electronic records which indicated that the applicant is not the subject of an approved nomination by standard business sponsor and that his most recently approved nomination had ceased on 20 September 2017. This information was relevant to the requirement in cl.457.223(4)(a) which requires the applicant to be the subject of an approved nomination under s.140GB of the Act. The Tribunal explained that if it relied on the information it may find that the applicant does not meet the requirements for the grant of the visa. The Tribunal also informed the applicant of the legislative changes that came into effect on 18 March 2018.[1] The effect of these changes is that nominations under s.140GB of the Act can no longer be made to support an outstanding application for a Subclass 457 visa.

   [1] Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (F201800262) (the Amending Regulations).

6. On 8 August 2019, the Tribunal received written submissions from the applicant in which he stated that his visa application was refused because he did not meet PIC 4020 and that he has been gathering information to prove the genuineness of his work experience in Nepal. He stated that he was not aware that the nomination could cease while his application for review was still processing. He stated that he would like the Tribunal to consider the issue relating to PIC 4020 as he does not want to be affected by the three-year bar. He stated that the obligations of his employer were beyond his control and that his employer intends to apply for a new nomination under the Temporary Skilled Shortage (TSS) Subclass 482 visa.

7. The Tribunal also received a letter of support dated 7 August 2019 from the applicant’s employer, Mr Tara Prakash Lama, in which Mr Lama set out the history of the applicant’s review application, the expiry of the 457 nomination and the difficulties the business would experience if the applicant’s employment could not be maintained. The Tribunal has relevantly considered the various submissions further below.

8. The applicant appeared before the Tribunal on 31 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, Mr Lama. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

9. Prior to the hearing, the Tribunal received copies of documents including an employment reference confirming the applicant’s employment as a baker in Australia, trade qualifications for the applicant and an award issued to the applicant in 2019 by the CEO of Bakers Delight in Australia.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. There are two issues in this review. The first is whether the visa applicant meets PIC 4020 as required by cl.457.224. The second is whether there is an approved nomination of an occupation in respect of the applicant that has not ceased as required by cl.457.223(4)(a).

12. The Tribunal has first considered the issues in PIC 4020.

13. Relevantly, PIC 4020(1) requires that there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made. This requirement can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4).

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?

14. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

15. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

16. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

17. When applying for the visa, the applicant indicated in the application form that he was employed as a bakery cook at the Weizen Bakery & Restaurant in Nepal between 13 July 2009 and 12 May 2013. Also provided to the Department with the visa application was an employment reference on the letterhead of Weizen Bakery & Restaurant, dated 18 May 2013, signed by the Managing Director, Nhuche Bahadur Maharjan. The employment reference stated that ‘Mr Sunil Shrestha has been working in the organisation as bakery cook from 13 July 2009 to 12 May 2013”.

18. The Department sought to verify the applicant’s claimed employment with Weizen Bakery in Nepal. Documents on the Department’s file, which include the natural justice letter dated 2 March 2017, which is referred to in the decision record, records evidence that was obtained by the Department’s overseas post during the verification checks. It was relevantly noted that the post had contacted the person listed on the reference, Mr Nhuche Bahadur Maharjan, who stated that a “Mr Sunil Shrestha” had never been employed by his business. It notes that Mr Maharjan also stated that his business has no website or email address, whereas the employment reference provided by the applicant had an email address as part of the letterhead.

19. In response to the natural justice letter, the applicant provided a further letter, which was also on letterhead in the name of “Weizen Restaurant and Bakery”, dated 4 March 2017, which had a website and email address and appeared to be signed by Mr Nhuche Bahadur Maharjan. In that letter, it was stated that there had been a misunderstanding during the enquiry made about the employment of Mr Sunil Shrestha as he knows the applicant as ‘Pasa Cook’. Mr Maharjan stated that in 2008 he started focusing on the managerial aspects of the bakery and was away from kitchen activities. He stated that the work environment in the bakery is homely and people addressed each other by their simple ‘nicknames’.

20. Mr Maharjan further stated that he belongs to the Newar ethnicity and that some pronunciations resemble words with a different meaning in Newari, and he was not able to recognise Mr Shrestha as a former colleague as someone had told him a year after ‘Pasa’ had left bakery that he was working in Kathmandu. He stated that he lost contact with ‘Pasa’ for a long time and did not think about him much since he was replaced by the new employee. He stated that ‘Sunil’ is a very common name in Nepal and India and that ‘Shrestha’ is also a common surname in their locality. He stated that he could not recall that Pasa’s name is ‘Sunil Shrestha’. He stated that the document submitted by Mr Shrestha was issued from his bakery and that, even though the signature was his, most of the documents had been prepared by Mr Narayan Maharjan (hereafter referred to as Mr Narayan) who was the senior accountant and administrative head at the time. He stated that he signed about 10 documents and did not get a chance to explore Pasa’s original name with such interest that he would recall it after five years during a phone call in a foreign language.

21. At the hearing, the Tribunal discussed with the applicant a number of matters, including his education and employment history, the decision to travel to Australia and whether he had previously declared his claimed employment with the Weizen Bakery/Restaurant in Nepal. The Tribunal also discussed with the applicant the various concerns it had with the evidence. The applicant responded to those concerns and the Tribunal has considered his responses. Details of the evidence and the Tribunal’s consideration follow.

22. In the course of the hearing, the applicant gave evidence that he travelled to Australia as a dependent on his former spouse’s student visa. They were granted the student visas in July 2013. They separated in 2015 or 2016 and they are now formally divorced. The applicant gave evidence that he completed high school level in Nepal, after which he started working as a baker. When asked if he had provided details of his qualification and work experience when he applied for the visa to travel to Australia, the applicant stated that his spouse, as the main applicant for the student visa, was the person who had to submit all the documents.

23. The Tribunal noted that it was likely he also would have had to provide background information about himself before being granted the visa, even as a secondary applicant. When asked if he had provided any details of his employment at Weizen Bakery when he applied for the student visa, the applicant stated that he had not declared his employment and he could not recall if he even had to provide this information. The applicant stated that they relied on the consultant who lodged the application on their behalf. He stated that he only recalls having to provide evidence about the financial support requirements.

24. The Tribunal noted that there is limited credible evidence about his claimed employment with Weizen Bakery and that this, combined with the adverse information obtained by the overseas post, casts doubt over whether he worked for Weizen Bakery as claimed in the application and employment reference. In response, the applicant stated that in Nepal employers do not normally provide work experience letters when someone leaves their employment. The Tribunal noted that he had nevertheless obtained an employment reference which appears to be Weizen which is dated shortly after he claimed to have left that employment. The applicant stated that when he came to Australia he thought an employment letter might be useful.

25. The Tribunal noted that during the verification checks conducted by the Department’s overseas post, Mr Maharjan indicated that no one by the name of ‘Sunil Shrestha’ had been employed at the bakery. In response, the applicant stated that it was the manager (Mr Narayan) who had employed him and that he only met the boss (whom the Tribunal took to mean Mr Nhuche Bahadur Maharjan) occasionally and that when they did meet, the boss referred to him as ‘Pasa’ because they come from the same community – the Newar community. The applicant then stated that the overseas post had contacted the boss directly and did not make contact with Mr Narayan because at the time Mr Narayan was overseas. He then stated that Mr Narayan had been misusing the bakery’s letterhead and stamp and because he (the applicant) was connected to Mr Narayan, the boss (Mr Maharjan) decided to take revenge by telling Immigration officers that he does not know him. The applicant then stated that after he found out what happened he contacted the boss (Mr Maharjan) and obtained another letter from him to clarify the situation, which he then provided to the Department.

26. The Tribunal expressed its concern with the applicant’s explanation and noted that Mr Maharjan had signed the initial employment reference provided with the application which certified that “Mr Sunil Shrestha” had been working as a bakery cook. The Tribunal indicated that it found it difficult to accept that after working at the bakery for the period claimed, Mr Maharjan, who signed a reference that recorded his proper name in bold, would not know that he was ‘Sunil Shrestha’ and only know him as ‘Pasa’ chef. In response, the applicant stated that at the time the boss (Mr Maharjan) used to sign the letters without reading the document and that it was later found out that Mr Narayan had been misusing the bakery’s letterhead and ran away.

27. The applicant then stated that when Immigration spoke to Mr Maharjan he denied knowing him (the applicant) because of his connection to Mr Narayan as he did not want any trouble and got nervous.

28. The Tribunal asked the applicant whether Mr Narayan, who had misused the bakery’s letterhead and stamp, had created the employment reference that was provided with the application which the Department found to be non-genuine. In response, the applicant stated that even though Mr Narayan made the document, he still had to get the signature of the owner (Mr Maharjan).

29. The Tribunal discussed with the applicant its overall concerns. Firstly, it noted that on his evidence he had made no mention of his claimed employment at Weizen Bakery in his student visa application. It also noted that the owner of the bakery, Mr Maharjan, did not know who he was when contacted by the Department. It further noted that the applicant had indicated that there was a person connected with the bakery, Mr Narayan, who had been misusing the bakery’s letterhead and stamp and who had provided him with the employment reference. The Tribunal put to the applicant that when considered in combination, the evidence before it casts doubt over his claim to have worked at Weizen Bakery. The Tribunal raised the concern that the employment reference provided with the application may have been manufactured by a person who had access to the bakery’s letterhead and stamp and that it was given to the applicant to assist him with the temporary work visa.

30. In response, the applicant stated that he has worked at the bakery otherwise he would not have been able to work in a bakery in Australia. The applicant stated that he got his Certificate III in Baking by sitting a practical examination and not from attending classes.

31. In relation to the evidence about Weizen Bakery not having a website or email address, which the Tribunal noted may also suggest that the employment references had been contrived, the applicant stated normally in Nepal, the manager (Mr Narayan) handles everything and the boss (Mr Maharjan) does not interfere. He stated that the manager was using the email to promote the business and that he provided his own contact number, including on the bakery’s letterhead, to promote the business.

32. When asked how he obtained the employment reference, the applicant stated that after he was granted the visa to travel to Australia, he contacted Mr Narayan and asked him for the letter which Mr Narayan managed to get for him.

33. When asked when he was granted the student visa, the applicant stated that the student visas were granted in July 2013. The Tribunal explained to the applicant that he had just given evidence that he had obtained the letter from Mr Narayan after he was granted the visa, yet the employment reference is dated 18 May 2013, which is two months prior to the grant of the student visa. The applicant then stated that he was not sure what dates he (Mr Narayan) managed at the time but most probably he had other documents which were all dated at the same time. He then stated that he worked at the bakery but the manager (Mr Narayan) had defrauded the business. The applicant stated that he was not aware that the reference would cause issues for him and thought it would be useful to get the reference.

34. The Tribunal put to the applicant the concern that the employment reference arranged by Mr Narayan may contain false or misleading information regarding his claimed employment with Weizen Bakery. The applicant stated that the owner (Mr Maharjan) had given him another letter explaining the situation and that he would not have done this if the first letter was not true. The Tribunal noted that Mr Maharjan had also indicated to Immigration that he did not know him. In response, the applicant stated that Mr Maharjan was angry at him because he is related to Mr Narayan and because he was also nervous.

35. The Tribunal has carefully considered the relevant evidence before it as follows.

36. The evidence before the Tribunal is that Mr Maharjan, whom the applicant indicated is the owner of the Weizen Bakery, informed the Department that he did not know the applicant and that no one by the name of ‘Sunil Shrestha’ had worked at the bakery. In seeking to explain this adverse information, the applicant provided a letter dated 4 March 2017 to the Department, which appears to have been signed by Mr Maharjan, stating that he knew the applicant by his nickname ‘Pasa Cook’, that he was unable to recognise the applicant due to the different pronunciation of words between Hindi and Newari and that Sunil Shrestha is a common name and that a long time had passed since the applicant had ceased employment at the bakery.

1. The Tribunal has considered these explanations but is not satisfied with them. The Tribunal considers that if the applicant had genuinely worked at Weizen Bakery from July 2009 to May 2013, which is a period of almost four years, then notwithstanding the period of time that had lapsed since that employment, Mr Maharjan would have known the applicant’s proper name and would have been able to confirm the applicant’s employment at the bakery. The Tribunal is also not persuaded that a difference in pronunciation of the name or that the names Sunil and Shrestha are common names satisfactorily explain why Mr Maharjan did not recognise the applicant’s name. The fact that Mr Maharjan could not recognise the applicant’s proper name or confirm that someone by that name had worked at the bakery strongly suggests that the applicant did not work at the Weizen Bakery as claimed.

2. The Tribunal is also not satisfied with the applicant’s explanation that Mr Maharjan had denied knowing him because of his association with Mr Narayan who had misused the bakery’s letterhead and stamp. The applicant’s evidence is that even though the employment reference from Weizen had been created by Mr Narayan, it was signed by Mr Maharjan because he (the applicant) had actually worked at the bakery. The difficulty with that explanation is that if the applicant had genuinely worked as a baker with Weizen for almost four years as claimed and if Mr Maharjan had genuinely signed that employment reference, it seems highly unlikely that the owner would have purposely denied knowing the applicant just because of his association with Mr Narayan. The Tribunal considers that the reason Mr Maharjan indicated to the Department that he did not know the applicant is because the applicant did not actually work at the Weizen Bakery as claimed.

3. The applicant gave evidence that he requested the employment reference after being granted the student visa, which he had earlier indicated was granted in July 2013. When the Tribunal noted that the employment reference was dated some two months prior to the grant of the student visa, the applicant indicated that he was not sure about the date and stated that the document were probably dated at the same time as other documents. The applicant’s response suggests that he had little regard to the accuracy of content of the employment reference which had been provided with his visa application. The discrepancies regarding the dates and when the applicant claimed to have obtained the employment reference casts further doubt over the genuineness of that document and its contents.

4. The evidence given by Mr Maharjan to the Department that the Weizen Bakery does not have a website or email address casts further doubt over the authenticity of the employment reference, which in its letterhead has an email, and the subsequent explanation letter, which has a website and email address. In explaining these discrepancies, the applicant stated that Mr Narayan had been using an email to promote the business. The Tribunal did not consider this explanation to be credible and finds it difficult to accept that Mr Maharjan, whom the applicant indicated is the business owner, would not be aware that a website and email had been arranged by the manager to promote the business.

5. The Tribunal is also not satisfied that the applicant being able to secure work in a bakery in Australia and attaining a Certificate III in Retail Baking in May 2016 proves that he has worked at the Weizen Bakery in Nepal for almost four years as claimed. The Tribunal considers it likely that the applicant acquired his skills as a baker whilst living and working in Australia. The fact that the applicant has been employed as a baker in Australia and has a Certificate III in Baking does not overcome the concerns the Tribunal has with the applicant’s claim to have worked in Nepal for almost four years at Weizen Bakery.

6. The Tribunal formed the view on the totality of the evidence that the applicant’s claimed employment in Nepal, including the employment reference provided with the application, has been contrived for the purpose of assisting the applicant with his application for the temporary work visa in the occupation of baker. The Tribunal is not satisfied that the applicant was employed as a baker at Weizen Bakery as claimed. The Tribunal is also not satisfied that the employment reference was issued by a person authorised to issue such a reference on behalf of Weizen Bakery.

7. Given the above, the Tribunal considers that there is evidence before it that, in relation to the application for the temporary work visa, the applicant has given, or caused to be given to the Minister, a bogus document, being an employment reference, which the Tribunal reasonably suspects to be counterfeit or altered by a person who does not have the authority to do so, as provided for in s.5(b) of the Act.

8. The Tribunal also considers that there is evidence before it, as discussed in some detail above, that the applicant has given, or caused to be given to the Minister, information in relation to his visa application that is false or misleading in a material particular regarding his claimed employment as a bakery cook with Weizen Bakery in Nepal. The Tribunal is satisfied that the information regarding the applicant’s claimed employment as a bakery cook was false or misleading at the time it was given and is relevant to the criteria in cl.457.223(4)(da) and (e) for the grant of the work visa which relates to the applicant’s skills, qualifications and employment background necessary to perform the nominated occupation.

9. Given the above considerations, the Tribunal finds that the applicant does not meet PIC 4020(1).

   Should the requirements of PIC 4020(1) or (2) be waived?

10. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

11. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

12. The applicant and his employer submit that the continued employment of the applicant is critical for the operation of the employer’s bakery.

13. The Tribunal has had regard to the submissions made by the applicant’s nominating employer, Mr Lama, in his letter to the Department dated 27 March 2017 and to Mr Lama’s most recent submissions to the Tribunal and oral evidence at the hearing.

14. Mr Lama indicated that his business, Bakers Delight in West Pennant Hills, would suffer great operational and financial hardship if the applicant is not granted the work visa. He stated that he is in desperate need for a baker and that he has made numerous unsuccessful attempts to fill the position locally. He stated that he owns another bakery and that baking and managing two bakeries would be extremely taxing on his health, work and family balance. Mr Lama stated that he has financially supported the nomination of the applicant so that he can secure the applicant’s employment for a period of at least four years. He stated that the 457 nomination was initially approved and that he had no reason to believe that the applicant’s visa would be refused as the applicant has demonstrated that he can carry out the tasks of the position and has a Certificate III in Retail Baking issued by an Australian institution. Mr Lama acknowledged that the applicant’s employment reference from Nepal was not verified by the business owner and stated that the applicant had informed him that the owner hardly came to the place of business and only knew him as ‘Pasa Cook’. Mr Lama stated that the applicant is an outstanding baker and requested that the applicant’s employment in Australia as a baker and the applicant’s compliance with visa conditions be considered.

15. At the hearing, Mr Lama reiterated the hardship that he would experience if the applicant’s employment could not be maintained. He stated that many trainees leave the baking industry and that few young people want to take up baking as a trade due to the early morning starts. Mr Lama stated that the applicant had assisted him greatly, that the applicant is a talented baker and that the applicant had recently won award as a rising talent in the industry.

16. The Tribunal noted that it is not uncommon for small businesses, particularly bakeries which have early starts, to experience difficulties with attracting and retaining staff. In response, Mr Lama stated that his bakery is different because they have to do everything from scratch, they do not keep any goods to sell the following day and have to start baking goods very early every morning. Mr Lama stated that the applicant is a very loyal and supportive employee.

17. In his evidence to the Tribunal regarding the waiver provisions, the applicant further stated that he had worked at the Weizen Bakery but is suffering because of the manager’s fraud. He stated that he is ready to work hard in Australia and wants to one day have his own bakery business. He stated that he won an award for best baker and can operate a franchise bakery.

18. The Tribunal has considered the submissions in relation to the waiver, but for the following reasons, is not satisfied that the requirements should be waived.

19. In relation to the applicant’s claims of employment with Weizen Bakery in Nepal, the Tribunal has already considered that evidence in some detail above.

20. The Tribunal accepts that the applicant has worked as a baker in Australia and that he has attained a Certificate III in Retail Baking. The Tribunal also accepts that the applicant has won an award for being a talented baker and that he has the potential to own and operate a bakery in the future. However, these circumstances relate to the skills, experience, achievements and aspirations of the applicant and do not, in the Tribunal’s view, constitute compelling circumstances that affect the interest of Australia or compassionate or compelling circumstances that affect the interests of an Australian or eligible New Zealand citizen.

21. The Tribunal has also considered the submissions regarding the effect on the Australian nominating business and the hardship that may be experienced personally by Mr Lama, as the business’s franchisee, if the applicant’s employment cannot be maintained. The Tribunal acknowledges the difficulties that may be experienced by Mr Lama, however, as expressed to the applicant and Mr Lama at the hearing, it is not uncommon for small businesses in Australia to experience difficulties in finding and retaining suitably qualified staff. The Tribunal acknowledges that the applicant is a very hard worker, that Mr Lama relies on the applicant and that the applicant has supported Mr Lama in being able to effectively operate his bakeries. However, Mr Lama would have been on notice since the applicant was refused the work visa in May 2017 that he may not be able to maintain the applicant’s employment and, in those circumstances, it is reasonable to expect that Mr Lama, since that time, would have considered a contingency strategy in the event the applicant is not granted the work visa. For these reasons, the Tribunal is not satisfied that the circumstances regarding the hardship that may be experienced by Mr Lama or the effect on the nominating business amount to compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

22. For the above reasons, the Tribunal considers that the requirements of PIC 4020(1) should not be waived. It follows that the applicant does not satisfy PIC 4020 for the purposes of cl.457.224.

23. The Tribunal has also found, for the reasons that follow, that the applicant does not satisfy the requirement in cl.457.223(4)(a).

    Approved nomination

24. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

25. The applicant applied for the visa on the basis of a 457 nomination made under s.140GB of the Act by AT & J Pty Ltd trading as Bakers Delight (the sponsor). That nomination was approved by the Department on 20 September 2016. By operation of r.2.75(2)(b), as in force immediately before 18 March 2018, the nomination in respect of the applicant ceased to be in effect 12 months after approval.

26. On 18 March 2018, the amendments to the Temporary Work (Subclass 457) visa program came into effect. This meant that the sponsor could no longer apply for any further nominations under the 457 program to support the applicant’s pending application for the Subclass 457 visa.

27. In response to the invitation to provide comments on the above information, the applicant and Mr Lama, in their written and oral submissions, indicated that the changes to the Regulations were outside their control and that it would be unfair for those changes to apply in this case. Mr Lama stated that he had a genuine need to fill the position and that the expiry of the nomination was due to the lengthy delay in processing of the visa application. It was also submitted that the sponsor intends to lodge a new Temporary Skilled Shortage (Subclass 482) nomination and a request was made to attach that nomination to this pending review for the Subclass 457 visa.

28. The Tribunal acknowledges the submissions made, however, the Tribunal has no discretion in these cases. The approved nomination in respect of the applicant ceased before the Amending Regulations came into effect on 18 March 2018 and there is nothing in the savings provisions of the Amending Regulations which retrospectively revives a nomination that ceased before the commencement day.

29. The Tribunal acknowledges that the sponsor intends to lodge a fresh nomination under the Subclass 482 program in respect of the applicant. The Tribunal notes, however, that even if a Subclass 482 nomination is lodged and approved in respect of the applicant, it does not assist the applicant in this case. This is because a nomination made after 18 March 2018 can only be made in respect of a prospective applicant for a Subclass 482 visa or the holder of a Subclass 482 or 457 visa. As none of these circumstances apply to the applicant, the applicant is unable to rely on a 482 nomination to support his pending application for a Subclass 457 visa.

30. For all of the above reasons, the Tribunal finds that the applicant is not the subject of a current approved nomination of an occupation that is capable of supporting his Subclass 457 visa.

31. It follows that the applicant does not meet the requirements in cl.457.223(4)(a). The Tribunal finds that the requirements for the standard business sponsor stream have not been met. There is also no evidence to suggest that the applicant would be able to satisfy the criteria for any of the other streams.

32. As the applicant does not meet the requirements for the visa, the Tribunal affirms the decision under review.

    DECISION

33. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    R. Skaros
    Senior Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(1)      There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

    (b)a visa that the applicant held in the period of 12 months before the application was made.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)The Minister is satisfied that during the period:

    (a)starting 10 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    …

    Migration Act 1958

    s.5      Interpretation

    (1) In this Act, unless contrary intention appears:

    …

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not, issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)was obtained because of a false or misleading statement, whether or not made knowingly.

    …